Late last night (Canadian time) or this morning (UK time), the Federal Court released its judgment in MacKinnon v Canada (Attorney General), 2025 FC 422, dismissing a challenge to the present prorogation of Parliament, which in all likelihood prevented a vote of non-confidence in the incumbent government. The ruling comes at least a week later than I had expected it when I wrote here about Chief Justice Crampton’s earlier grant of the applicants’ motion to expedite the case, and perhaps the delay should have tipped us off as to how the case was going to turn out. In any case, the outcome is a relief.
As I will argue below, Crampton CJ’s reasons are a somewhat different matter. They are sound on a number of preliminary points, but less so when it comes to the merits of the case. Still, on the whole, they are tolerably good, at least allowing for the short timeline on which the case was argued and decided. I had some apprehensions in this regard in my previous post, and, in fairness to Crampton CJ, I must note that the worst of them did not come to pass.
Crampton CJ begins with the question whether the Prime Minister’s advice as to how the Governor General ought to exercise the prerogative power of prorogation is subject to review by the Federal Court. Under the Federal Courts Act, this turns on whether in giving this advice the Prime Minister was “exercising or purporting to exercise jurisdiction or powers conferred … by or under an order made pursuant to a prerogative of the Crown”, and whether his advice ― as opposed to the Governor General’s action in proroguing Parliament ― is a decision with legal effect and capable of being reviewed. The Attorney General argued that, unlike, perhaps, in the United Kingdom, there is in Canada discretion to refuse a Prime Minister’s advice to prorogue Parliament.
Crampton CJ finds that he has jurisdiction to review Prime Ministerial advice. He draws on earlier cases that held that “advice given by the Prime Minister with respect to the exercise of other types of prerogative powers … constitute[s] the exercise of Crown prerogative power”. [58] As to the contention that it is really the Governor General’s decision and not the Prime Minister’s advice that matters, he notes that “[b]y convention and under the principle of responsible government, the Governor General
acts on the advice of a Prime Minister who enjoys the confidence of the House”. [67] The Attorney General’s argument “fails to reflect the
reality of the situation”, since “[t]he Prime Minister’s advice is in fact a critical lynchpin of the exercise of the Crown’s prerogative to prorogue Parliament”. [68]
I think this is generally right. Besides the Canadian cases Crampton CJ discusses, I think one might note, already at this stage, the UK Supreme Court’s decision in R (Miller) v Prime Minister [2019] UKSC 41, [2020] AC 373 (Miller II), where the Prime Minister’s advice to the Queen to prorogue Parliament was treated as an appropriate object of judicial review because the Prime Minister was “the only person with power to” ensure that the prorogation that followed his advice would be lawful. [30] A bit further afield, both geographically and legally, I would also note Fitzgerald v Muldoon, a famous New Zealand decision that treated a public statement by the Prime Minister as the exercise of a pretended and illegal prerogative power to suspend laws. Whether or not the constitutional conventions that regulate the relationship between the Sovereign or his representative and the first minister are really “not laws at all”, as Dicey had it, in the sense that they are not directly enforceable, courts can at least take them into account for the purpose of ensuring that the exercise of ostensibly royal powers is subject to law, which after all is the point of the whole constitutional drama ― court cases, statutes, revolutions, execution ― of the 17th century, provided that it is justiciable.
Justiciability is the next issue Crampton CJ considers. As he explains, the separation of powers and the limitations on the courts’ institutional competence mean that certain questions are unsuited for judicial resolution. At the same time, the separation of powers also requires that the executive’s compliance with the law be subject to judicial supervision. The Attorney General argued “that the issue of whether the Prime Minister exceeded his authority in” advising the prorogation was not justiciable because it was so bound up with political considerations and governed by conventions as to lack any legal standards by which it could be resolved.
But Crampton CJ rejects this position. It is well-established that courts can verify whether an alleged prerogative power exists and, moreover, whether its exercise complies with the constitution (including both the Canadian Charter of Rights and Freedoms and other constitutional rules and principles) and other legal rules. In his view, “[t]he constitutional or other legal limits that may circumscribe the prerogative to prorogue
Parliament provide the objective legal standards against which to adjudicate the issue”. [110]
This has to be right. Consider that section 5 of the Charter provides an explicit limit to the scope of the prorogation power in Canadian law: a purported prorogation for more than one year would be plainly unconstitutional. But if the entire issue of the limits of a Prime Minister’s authority to advise a prorogation were non-justiciable, the courts couldn’t even say that much. This would be an untenable, indeed a nonsensical position. Of course the present prorogation does not contravene section 5, and one may be very sceptical indeed that there are any other rules, constitutional or otherwise, that apply, but that is an argument that goes to the merits of the case, not to justiciability.
Before turning to the merits, Crampton CJ also has to consider the isue of standing: what makes it appropriate for the applicants, who are ordinary members of the public not obviously more affected by the prorogation than anyone else, to bring these proceedings? Applying the test set out by the Supreme Court in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 SCR 524 Crampton CJ finds that the applicants meet the test for public interest standing, because they are raising a serious constitutional issue in which “at least one of” them has “a genuine interest” (though perhaps a less well-documented one than is usual in such cases) and these proceedings are an effective ― indeed, realistically, the only possible ― way of having the issue adjudicated.
In light of precedent such as Downtown Eastside and others (a particularly egregious one I blogged about here was Canada (Procureur général) c Barreau du Québec, 2014 QCCA 2234) this is hardly suprising. Indeed, for all its permissiveness, Canadian law on this point still strikes me as sounder than that of New Zealand, where standing is, for reasons beyond my comprehension, considered after the merits (and applying a test that is so lax as to elicit judicial protestations that “it still exists”), or the United Kingdom, where Miller II contains no discussion of or even reference to standing as a potential obstacle to the claim. I have some sympathy for the view that the relaxation of standing has gone much too far, but that is a discussion for another day.
These preliminary matters disposed of, Crampton CJ turns to the merits. He notes that, while constitutional issues of great importance are at stake, the separation of powers “implicitly require[s] a deferential approach to matters within the legitimate sphere of activity of the other branches of government”, [155] notably when touching on the reasons for the Prime Minister’s decision to prorogue Parliament. Crucially, Crampton CJ declines to straightfowardly apply Miller II to guide his analysis. He argues that, in addition to being the product of a unique set of facts, including constitutional change due to occur on tight deadlines, Miller II is based on a consitutional framework different from Canada’s, notably in that the absence of a legally supreme constitutional text “appears to have provided more scope for the [UK Supreme Court] to draw upon unwritten constitutional principles than” Canadian courts have. [164]
The applicants identified a number of legal limits that the prorogation, in their view, infringed. First, there was section 3 of the Charter, which on its face protects the right to vote but has been read to encompass a broader right to “effective representaiton”. But drawing on cases such as Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, Crampton CJ finds that “the rights to effective representation and to participate in the
political life of the country should be interpreted in terms of the electoral process … rather than what happens afterwards”. [176; emphasis in the original]
Next, Crampton CJ rejects the argument that section 5 of the Charter is the sum total of legal limits on the prorogation prerogative. In his view, neither its plain meaning nor a purposive interpretation compel such a reading:
a reading of section 5 which forecloses the possibility of drawing upon an unwritten constitutional principle to fill a gap in the written constitution emanating from the architecture of the Constitution would produce an incoherency in that architecture. [185]
Besides, “Parliament has on several occasions legislated limits to the prorogation power when specific circumstances are met”, [187] which suggests that other limits might exist too in order “to address other types of exceptional situations”. [188]
The applicants argued that a variety of constitutional principles, such as democracy, the separation of powers, and the rule of law, combined to compel the conclusion that the prerogative power to prorogue Parliament is subject to implicit limits that protect Parliament’s constitutional role. This reasoning closely follows Miller II. But Crampton CJ rejects this approach. After surveying the Supreme Court’s jurisprudence cautioning against overreliance of unwritten principles, notably Toronto (City) v Ontario (Attorney General), 2021 SCC 34, [2021] 2 SCR 845, he concludes that, at most, these prniciples might be relied on to invalidate actions of the executive when argument for doing so “arises by necessary implication from the Constitution’s text and architecture”. [224; emphasis in the original]
That is not the case here. There is not enough evidence that the prorogation was intented to prevent a vote of non-confidence or actually did so, with the result that “the issue of whether it would be beyond the Prime Minister’s authority to exercise the prorogation power for the purpose of avoiding a certain confidence vote is best left for another day. [242; emphasis in the original] Nor have the applicants shown that the prorogation would interfere with constitutional architecture, opening the door to an application of constitutional principles to invalidate it, or “identified any specific adverse effects of the Prime Minister’s Decision on Parliament’s ability to fulfill its constitutional functions, let alone the effects of the magnitude that were identified in Miller II“. [260]
Finally, Crampton CJ rejects an arguement that, in effect, the Prime Minister’s decision to prorogue Parliament was made for an improper purpose. On the one hand, “the merits or wisdom of the Prime Minister’s view that Parliament was ‘paralyzed’” ― that is, his stated reason for the prorogation ― “is not a justiciable issue”. [269] The same goes for “the Prime Minister’s choice to prorogue Parliament rather than dissolve
Parliament and call an election”, [288] or indeed “for the number of weeks for which Parliament may be prorogued”, since “it would be beyond the Court’s institutional capacity to assess the reasonableness of a justification for a particular length of a prorogation”. [289] On the other, “it is not possible to disentangle the … partisan considerations”, which the applicants alleged were the real, and impermissible, reason for the prorogation “from the other considerations that supported” the Prime Minister’s decision, [275] even if “the overall circumstances are troubling”. [282]
Crampton CJ is right to reject out of hand the argument based on section 3 of the Charter. This provision has sometimes been stretched to and well past any plausible breaking point, but the idea that it can in effect be invoked to compel the holding of an election was a novel one ― and that is not a compliment. I also largely agree with Crampton CJ’s treatment of the improper purpose argument.
Indeed, I think it allows me to take a little victory lap in relation to my article on Miller II, where I argued that the UK Supreme Court treated the longstanding practice of prorogations being kept very short as, in effect, a constitutional convention which it enforced. Whether or not it would have been accurate to speak of such a convention in the UK, it obviously isn’t in Canada ― there is no consistent practice, and there have been very long prorogations in recent years. This is why Crampton CJ says, rightly, that there is no legally administrable standard for assessing the reasonable length of a prorogation. It is the consistent practice, which the UK Supreme Court regarded as normative, that provided such a standard in the UK ― and not the principles on which the Court purported to rely. Victory lap done.
Back to Crampton CJ. His approach to section 5 and to unwritten principles is where he loses me. To me, his reading of section 5 is strange if not outright perverse. No provision of the Charter, or of another constitutional text, is worded so as to explicitly exclude the operation of unwritten principles. But the Supreme Court has repeatedly said that they do just that, notably in British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473 and Toronto (City), where the Court refused to apply unwritten principles so as to beef up Charter rights. There were no “gaps” for the principles to fill. Crampton CJ takes note of this jurisprudence when discussing the limited scope for applying principles generally, but ignores its implications for Charter interpretation (which in my view is its most defensible aspect: I have otherwise been very critical of Toronto (City)‘s treatment of unwritten principles). As for Parliament creating additional limits by statute, well, Parliament can do that because it gets to make law. Courts don’t make law, so they don’t get to expand Charter rights.
Crampton CJ, like other Canadian jurists, is seemingly allergic to bright-line rules; there must always be some vague exception for an indeterminate future emergency. I think this is a fundamental problem in the mindset of the Canadian judiciary, because it undermines the clarity and certainty of the law, and thus the Rule of Law itself. Here, the mistake may seem inconsequential, because Crampton CJ is able to rely on the insufficiency of the evidence of interference with constitutonal principles or architecture (whatever that may be; Crampton CJ doesn’t explain) to swat the case away. Perhaps that will always be true: discussion of whether a prorogation served to avert a vote of no-confidence in the government is bound to be speculative. But if not, courts may be forced into a thicket of issues where constitutional rules and politics are entangled in ways that would best be avoided.
And even if not, I daresay there is at least an air of unreality to Crampton CJ’s reasons: granted, “we all have a pretty damned good idea of what would have happened” isn’t legally cognizable evidence, but… we all still have a pretty damned good idea. And it is simply unnecessary for the courts to put themselves in a position where they are forced to make such implausible statements. The framers of the Charter solved the problem for them by laying down a clear rule. Holding that line is all they need to do. But holding lines is just not the Canadian courts’ style.
I suppose this is the end of the road for the Canadian version of the Case of the Prorogations. There just isn’t much time left and I have a hard time seeing the Federal Court of Appeal overturning Crampton CJ’s decision as a matter of urgency, even if the applicants ask it to. This case had the potential to do a great deal of damage to the constitution and perhaps also to the relationship between the courts and the political branches; in the event, the damage is limited. Crampton CJ’s reasons are flawed in some unsurprising ways, as I have argued above, but they could have been a lot worse. These days, small blessings look bigger than perhaps they should.